Kennedy v. Sheriff of East Baton Rouge

• Citation: 935 So.2d 669
• Decision Date: 10 July 2006
• Docket Number: No. 2005-C-1418.,2005-C-1418.
• Parties: Alfred KENNEDY, III v. SHERIFF OF EAST BATON ROUGE and Jack in the Box Eastern Division L.P. d/b/a Jack in the Box.
• Court: Supreme Court of Louisiana

935 So.2d 669

Alfred KENNEDY, III v. SHERIFF OF EAST BATON ROUGE and Jack in the Box Eastern Division L.P. d/b/a Jack in the Box.

No. 2005-C-1418.

Supreme Court of Louisiana.

July 10, 2006.

Rehearing Denied September 1, 2006.

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Keogh, Cox & Wilson, Stephen R. Wilson, Baton Rouge, for applicant.

Harley M. Brown, Baton Rouge; Taylor, Porter, Brooks & Phillips, Harry J. Phillips, Jr., John A. Viator, Cyrus J. Greco, Megan C. Foco, Baton Rouge, for respondent.

WEIMER, Justice.

This case arises out of a claim for defamation brought by a private individual against a fast food restaurant. The allegedly defamatory statements were made by employees of the restaurant when they contacted police to report that an occupant in a vehicle in the drive-through lane of the restaurant had attempted to buy food with a counterfeit one hundred dollar bill. The district court granted summary judgment in favor of the restaurant, but the court of appeal reversed. We granted certiorari primarily to consider whether a private individual is entitled to a conditional or qualified privilege when the individual reports suspected criminal activity to the police, and if so, whether the privilege was abused in this case. Finding that the report to police of suspected criminal activity was conditionally privileged, and that the plaintiff failed to submit evidence sufficient to demonstrate that he will be able to meet his burden of proof at trial that the privilege was abused, we reverse the judgment of the court of appeal and reinstate the summary judgment in favor of the restaurant.

FACTS AND PROCEDURAL HISTORY

Shortly after midnight on December 7, 2001, Alfred Kennedy, III, accompanied by four female companions, entered the drive-through lane of a Jack in the Box restaurant in Baton Rouge, Louisiana. After confirming with the attendant on duty that the restaurant would accept one hundred dollar bills, the party placed an order for food and drinks. Kennedy tendered a 1974 series one hundred dollar bill in payment of the order. Suspecting the bill was counterfeit, the restaurant employee who received the bill notified local law enforcement. East Baton Rouge Parish sheriff's deputies arrived on the scene in minutes. Upon examining the bill and determining that it looked "suspicious," one of the deputies approached the vehicle, which was still in the drive-through lane, and motioned for the driver to move her car from the line. After the car was parked, and identification obtained from each of the occupants, the deputies proceeded to ascertain who in the vehicle had tendered the one hundred dollar bill. When Kennedy identified himself as the owner of the currency, he was asked to exit the car, whereupon he was handcuffed and transported to a nearby sheriff's substation to await investigation into the bill's authenticity.

While Kennedy waited at the substation, one of the deputies obtained a counterfeit detection marker from a nearby business. The bill was ultimately determined to be legitimate, and Kennedy was released and his money returned.

On June 26, 2002, Kennedy filed suit against both the Sheriff of East Baton Rouge Parish ("Sheriff") and Jack in the Box¹ seeking damages. Answers were filed by both defendants, following which the Sheriff moved for summary judgment. Jack in the Box filed an exception of no cause of action, and alternative motion for summary judgment. The matter was heard on December 8, 2003. At the conclusion of the hearing, the district court denied Jack in the Box's exception of no cause of action, but granted both motions for summary judgment. With respect to the claims against the Sheriff, the district court ruled that the deputies had probable cause to effect an arrest of Kennedy. As to the claims against Jack in the Box, the court found no evidence to indicate that Jack in the Box or any of its employees detained Kennedy, and thus no evidence sufficient to support a claim for wrongful arrest. In addition, the court found that "[t]he record is also void of any showing of malice to support any kind of claim for defamation." A judgment dismissing the claims against the Sheriff and Jack in the Box was signed by the district court on December 16, 2003.

Kennedy appealed the adverse judgment. Jack in the Box answered the appeal seeking damages for frivolous appeal. On March 24, 2005, the Court of Appeal, First Circuit, handed down its opinion in this matter. Kennedy v. Sheriff of East Baton Rouge, 04-0574 (La.App. 1 Cir. 3/24/05), 899 So.2d 682. After conducting a de novo review of the materials submitted in connection with the summary judgment motions, the court of appeal concluded as a matter of law that the "defendants failed to show that they acted reasonably or without a reckless disregard for Mr. Kennedy's rights when a criminal investigation was instituted because the bill he presented merely looked unusual." Kennedy, 04-0574 at 11, 899 So.2d at 689. The court found that defendants failed to offer any evidence to indicate that their employees received any training or possessed any specialized knowledge with respect to identifying counterfeit currency, thereby raising factual questions as to the reasonableness of their conduct. Accordingly, the court of appeal vacated the district court judgment granting summary judgment in favor of defendants and remanded the matter for further proceedings.

Upon Jack in the Box's application,² we granted certiorari primarily to address the defamation claim, and more particularly, whether Jack in the Box's employees enjoyed a qualified privilege in reporting suspected criminal activity to law enforcement officials; and if so, whether sufficient evidence was offered of an abuse of the privilege to defeat Jack in the Box's motion for summary judgment. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.1/13/06), 920 So.2d 217.

LAW AND DISCUSSION

We most recently addressed the tort of defamation in Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129. Therein, we noted that defamation is a tort involving the invasion of a person's interest in his or her reputation and good name. Costello, 03-1146 at 12, 864 So.2d at 139. Four elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Id., quoting Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559; RESTATEMENT (SECOND) OF TORTS § 558 (1977). The fault requirement is generally referred to in the jurisprudence as malice, actual or implied. Costello, 03-1146 at 12, 864 So.2d at 139.

By definition, a statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule. Costello, 03-1146 at 13, 864 So.2d at 140; Trentecosta, 96-2388 at 10, 703 So.2d at 559 (citing RESTATEMENT (SECOND) OF TORTS § 559 cmt. e (1977)). In Louisiana, defamatory words have traditionally been divided into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning. Costello, 03-1146 at 13, 864 So.2d at 140; Madison v. Bolton, 234 La. 997, 102 So.2d 433, 438 (La.1958). Words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one's personal or professional reputation, without considering extrinsic facts or circumstances, are considered defamatory per se. Costello, 03-1146 at 13-14, 864 So.2d at 140; Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196, 198 (La.1980). When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Costello, 03-1146 at 14, 864 So.2d at 140. Injury may also be presumed. Id. When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, falsity, malice (or fault) and injury. Id.

In the instant case, plaintiff's petition alleges that "Jack in the Box employee(s) made the false allegation to law enforcement officers that the plaintiff had passed counterfeit or unlawful tender at its restaurant." Such an allegation could be construed as Jack in the Box employees falsely accusing the plaintiff of the crime of monetary instrument abuse, LSA-R.S. 14:72.2. Under Louisiana's traditional defamation rules, such a statement would be considered defamatory per se, and the elements of falsity and malice (or fault) would, as a result, be presumed, shifting the burden of proof to defendant to rebut the adverse presumption.

Constitutional Requirements

Since the seminal decision of the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the tort of defamation has been subject to the constraints of the First Amendment to the Constitution and its prohibition against any law abridging freedom of speech or of the press. In New York Times, the Supreme Court held that the First Amendment prohibits a public official from recovering damages arising from a defamatory falsehood published in relation to his or her official conduct unless the public official proves that statement was made with "actual malice" — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times, 376 U.S. at 279-280, 84 S.Ct. at 726. The Supreme Court granted the protection to speech concerning public officials because of its perception that the common law rules of defamation, which imposed strict liability on the publisher of a defamatory statement that later proved to be false, regardless of whether the publisher had exercised due care to check the...